Racing NSW v Goode
[2023] NSWPICPD 43
•28 July 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | RACING NSW V GOODE [2023] NSWPICPD 43 |
APPELLANT: | Racing NSW |
RESPONDENT: | Paul Goode |
INSURER: | Self-insured |
FILE NUMBER: | A1-W6404/21 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 28 July 2023 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 10 June 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 289A of the Workplace Injury Management and Workers Compensation Act 1998 – whether the Commission may deal with a previously unnotified Anshun estoppel argument – principles in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 considered and applied – whether claims for medical or related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 are estopped by failure to claim in earlier proceedings -Geary v UPS Pty Ltd [2021] NSWPICPD 47; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 and Miller v Secretary, Department of Communities and Justice (No 10) [2022] NSWCA 190 applied and considered |
HEARING: | 18 July 2023 |
REPRESENTATION: | Appellant: |
| Mr D Baran, counsel | |
| HWL Ebsworth Lawyers | |
| Respondent: | |
| Ms E Grotte, counsel | |
| Santone Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 10 June 2022 |
INTRODUCTION AND BACKGROUND
The respondent worker, Mr Paul Goode, was born in the United Kingdom. The respondent left school at the age of 16 to become a qualified horse jockey and worked as a jockey for 20 years. In 2003 the respondent migrated to Australia where he continued to work as a jockey.
On 29 June 2009 the respondent suffered a serious accident in a horse race. In the subject accident, the respondent suffered a complete spinal cord injury and as a consequence of this injury became a paraplegic. The respondent’s diagnosis is paraplegia at the T4 level. The respondent also suffered a number of other injuries in this accident including a fracture of his C2 vertebrae, multiple fractures of his discs from T4 to T7, fractured ribs, a left rotator cuff injury and pulmonary contusions to his lungs.
The respondent is permanently confined to a wheelchair and requires assistance in daily living as well as ongoing medical care.
The appellant has accepted liability for these injuries.
The respondent signed a Complying Agreement pursuant to s 66A of the Workers Compensation Act 1987 (the 1987 Act) on 21 October 2010. By virtue of this agreement, the appellant agreed to pay the respondent s 66 benefits in the sum of $220,000 (85% WPI) and s 67 benefits in the sum of $50,000.[1]
[1] Application to Resolve a Dispute dated 10 December 2021 (ARD), p 10.
On 16 June 2012, the respondent and his wife returned to live in the United Kingdom. This was because of a desire and need for the respondent to be close to family and friends who assist in his care.
Over the years since the accident, the respondent has submitted various claims to the appellant for the payment or refund of various expenses to do with his treatment including medication, rehabilitation, housing amendments and maintenance. This is entirely unsurprising given the nature of the respondent’s injuries and consequent needs.
Some of these expenses have been paid by the appellant, others have been disputed.
By Application to Resolve a Dispute (ARD) filed on 18 February 2020 (the 2020 claim) in the former Workers Compensation Commission, the respondent made a number of claims for expenses under s 60 of the 1987 Act, house repairs and hotel expenses. A Certificate of Determination (COD) reflecting the consent of the parties[2] was made on 22 April 2020 by Arbitrator Scarcella (as he then was) of the Workers Compensation Commission.[3]
[2] ARD, pp 28–29.
[3] The former Workers Compensation Commission was abolished on 1 March 2021: Sch 1, Pt 2, Div 2, s 3(d) of the Personal Injury Commission Act 2020 (the 2020 Act).
As is evident from the COD, various orders were agreed. Some claims were paid, others were subject to an award in favour of the appellant and a final category of claim was discontinued.
The respondent subsequently filed an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 10 December 2021 (the 2021 claim). The 2021 claim also made a number of claims for expenses under s 60 of the 1987 Act in accordance with the schedule attached to the ARD.[4] The appellant disputed the entirety of the 2021 claim.
[4] ARD, p 315.
The dispute was listed for hearing before Member Wynyard on 1 March 2022 in the Commission. The appellant disputed that the claims were allowable claims under the definition contained in s 59 of the 1987 Act and further disputed that they were reasonably necessary for the purposes of s 60 of the 1987 Act. At the 1 March 2022 hearing the appellant, for the first time, indicated that the claim was also opposed on the basis that Anshun estoppel applied.[5] The appellant accepted that as it had not previously notified this ground to dispute the claim, leave was required under s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The application made at the hearing on 1 March 2022 was the first notice the respondent received that Anshun estoppel was being relied on by the appellant.
[5] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun).
The Member, in a decision dated 10 June 2022, declined to grant the appellant leave under s 289A of the 1998 Act to rely on Anshun estoppel to defend the application, and further made orders in favour of the respondent for the claimed expenses under s 60 of the 1987 Act. It is from the Member’s decision declining leave under s 289A of the 1998 Act to argue Anshun estoppel that the appellant appeals.
HEARING
Given the issues raised in this appeal, I formed the view that an oral hearing was both desirable and necessary for the proper disposition of this matter. A directions hearing took place on 5 July 2023 with the hearing itself being conducted on 18 July 2023.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
As this is a case requiring consideration of the principles regarding leave pursuant to s 289A of the 1998 Act and Anshun estoppel, I set out below the evidence which is germane to these matters that I must consider on this appeal. This includes consideration of the 2020 and 2021 claims in some detail, and the history of the claims made and disputed by the appellant in the lead up to the hearing on 1 March 2022 when leave was sought to argue the point.
In the 2020 claim, claims were made for swimming pool expenses, IVF treatment, rehabilitation equipment, house repair expenses, hotel expenses and a foot warmer.
The respondent first sought to claim the cost of swimming pool expenses, submitting seven invoices for various dates in 2011 on the appellant.[6] This was disputed by way of a notice issued pursuant to the then s 74 of the 1998 Act (s 74 notice) dated 29 May 2013 on the basis that installation of a pool was not reasonably necessary as a result of injury as required by s 60 of the 1987 Act.[7]
[6] ARD in 2020 claim, pp 227–234, annexed to appellant’s submissions dated 7 June 2023.
[7] ARD in 2020 claim, pp 12–18, annexed to appellant’s submissions dated 7 June 2023.
The respondent sought to claim the cost of IVF treatment, submitting 15 invoices for various dates in 2011 on the appellant.[8] This was disputed by way of s 74 notice dated 8 June 2012 on the basis that the appellant did not consider the IVF treatment to fall within the meaning of ‘medical or related treatment’ pursuant to s 59 of 1987 Act, or in the alternate, it was not reasonably necessary pursuant to s 60.[9]
[8] ARD in 2020 claim, pp 207–210, annexed to appellant’s submissions dated 7 June 2023.
[9] ARD in 2020 claim, pp 19–21, annexed to appellant’s submissions dated 7 June 2023.
The respondent sought the cost of hotel expenses, submitting an invoice of 10 August 2012 on the appellant.[10] This was disputed by way of the s 74 notice dated 29 May 2013 on the basis that the accommodation expenses were not incurred whilst the respondent was travelling to receive medical treatment as defined by s 60(1) of the 1987 Act, and thus, were not compensable.
[10] ARD in 2020 claim, pp 244–248, annexed to appellant’s submissions dated 7 June 2023.
The respondent sought to claim the cost of rehabilitation equipment, submitting three invoices for various dates in 2015 on the appellant by email dated 21 January 2015. These invoices post-date the s 74 notices referred above and it is thus unclear when this expense was formally disputed, and on what the basis.
The respondent sought to claim the cost of house repair expenses submitting two invoices dated 9 December 2012 and 18 October 2018.[11] This was disputed by way of email dated 4 November 2018 stating that it was general maintenance and upkeep of the respondent’s home, and thus not reasonably necessary.[12] It should be noted that there was an award for the respondent in regard to the 2018 invoice while the claim for the 2012 invoice was discontinued, in the 2020 Certificate of Determination - Consent Orders. The 2012 invoice was again submitted by the respondent’s solicitor in email correspondence dated 24 July 2020. In response, the appellant advised that the cost had already been reimbursed in late June 2020. On 23 September 2021, the respondent’s solicitor requested the appellant check its records as the respondent did not believe it had been paid and intended on including it in the 2021 claim.[13]
[11] ARD in 2020 claim, pp 240–243, annexed to appellant’s submissions dated 7 June 2023.
[12] ARD in 2020 claim, p 238, annexed to appellant’s submissions dated 7 June 2023.
[13] ARD in 2021 claim, p 67.
The respondent also sought to claim the cost of a Homefront Luxurious Electric Foot Warmer, submitting a quote via email dated 21 November 2018.[14] This was disputed by way of email correspondence dated 21 November 2018 on the basis that it “it has no proven medical evidence to support that it would assist [the respondent] in any way. Wrapping a blanket around the feet would be similar, more than likely safer, not being electrical.”[15]
[14] ARD in 2020 claim, p 35, annexed to appellant’s submissions dated 7 June 2023.
[15] ARD in 2020 claim, p 34, annexed to appellant’s submissions dated 7 June 2023.
The ARD for the 2020 claim was filed on 18 February 2020. It proceeded to conciliation and a Certificate of Determination was issued on 22 April 2020 reflecting the agreement of the parties as follows:
“By and with the consent of the parties, the determination of the Commission in this matter is as follows:
1. The following documents are admitted into evidence:
(a)Application to Resolve a Dispute dated 18 February 2020 and attached documents;
(b)Reply dated 26 February 2020 and attached documents;
(c)[Respondent’s] Application to Admit Late Documents dated 24 March 2020 and attached Schedule of Expenses under section 60 of the Workers Compensation Act 1987;
(d)[Appellant’s] Application to Admit Late Documents dated 20 April 2020 and attached documents.
2. Award for the [appellant] in relation to the claim for swimming pool expenses itemised 1 to 8 inclusive of the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the [respondent’s] Application to Admit Late Documents dated 24 March 2020.
3. Award for the [respondent] in relation to the claim for IVF treatment expenses itemised 9 to 23 inclusive of the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the [respondent’s] Application to Admit Late Documents dated 24 March 2020.
4. The [respondent’s] claim for rehabilitation equipment expenses being items 24, 27 and 28 (Able Rehabilitation Equipment) in the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the [respondent’s] Application to Admit Late Documents dated 24 March 2020 is discontinued.
5. The [respondent’s] claim for house repair expenses under section 60 of the Workers Compensation Act 1987 in accordance with the invoice issued by D J Smith, Painter and Decorator dated 9 December 2012 and reproduced in the Application to Resolve a Dispute at page 242 is discontinued.
6. The [appellant] agrees to pay the [respondent’s] house repair expenses under section 60 of the Workers Compensation Act 1987 in accordance with the invoice issued by D J Smith, Painter and Decorator dated 18 October 2018 and reproduced in the Application to Resolve a Dispute at page 243 in the sum of GBP£1,093.44.
7. The [appellant] agrees to pay the [respondent’s] hotel expenses under section 60 of the Workers Compensation Act 1987 in accordance with the documentation and invoice issued by Blackthorn Lodge and reproduced in the Application to Resolve a Dispute at pages 244-245 in the sum of GBP£6,760.
8. The [appellant] agrees to pay for the claimed Homefront Luxurious Electric Foot Warmer.”
In the 2021 proceedings, the respondent made several more claims on the appellant for payment of medical or related treatment expenses, some of which were subject of the s 74 dispute notice of 29 May 2013 and disputed on the basis that they were not reasonably necessary medical or related treatment expenses pursuant to ss 59 and 60 of the 1987 Act, or were costs that would have been incurred if not for injury. This included furniture and removal costs, and the costs of relocation to the UK, as follows:
· $2,650 from Walkers moving and storage, with an invoice dated 18 November 2009;
· $15,320 from Grace Removals Group, with an invoice dated 14 March 2012;
· $12,996 for two business class seats from Emirates Flight Centre dated 18 May 2012;
· $2,100 for excess baggage from Emirates Flight Centre;
· GBP58.9 import tax from UK Customs dated 21 June 2012;
· $3,360 from Jetpets for the transportation of Mr Goode’s dog, dated 1 May 2012, and
· $567 for medical supplies posted to the UK dated 8 June 2012.
As noted above, the respondent also re-claimed the cost of repairs and redecoration to his home in the UK, providing an invoice for GBP6,525.17 from DJ Smith dated 9 December 2012, an expense which was originally claimed in the 2020 proceedings, but was discontinued. The invoice was sent to the appellant via email dated 24 July 2020, and while there is disagreement about the respondent being reimbursed for this, it is not pressed in any of the appellant’s submissions before me.
In addition, the respondent also claimed the purchase of a robotic lawn mower and provided an invoice dated 18 June 2020, a cost incurred after resolution of the 2020 claim.[16] This claim was disputed in the section 78 notice dated 29 April 2020 on the basis that it is not reasonably necessary. In this notice, the appellant notes it supplied a ride on mower to the respondent and paid for modifications to assist the respondent with its use. It further notes the appellant has longstanding arrangements with Wilkinson’s Landscaping for the general maintenance of the respondent’s yard and garden and thus, the robotic lawn mower was not reasonably necessary.[17]
[16] ARD, p 306.
[17] ARD, p 26.
Another additional claim is for the cost of heating oil, made on the appellant by email on 29 January 2021.[18] The respondent provided invoices dating between 1 July 2000 to 31 July 2020, and three further invoices dated 6 October 2020, 8 December 2020, 9 March 2021, totalling GBP12,038.26.[19] This was disputed by the appellant in a reply email dated 17 February 2021, which stated as follows:
“We refer to the following, It appears to be the inclement weather patterns that we all experience in each season, more so in the UK .
The following is an interesting fact, that you may already be aware of.
The United Kingdom straddles the higher mid-latitudes between 49° and 61° N on the western seaboard of Europe. Since the UK is always in or close to the path of the polar front jet stream, frequent changes in pressure and unsettled weather are typical. Many types of weather can be experienced in a single day. In general the climate of the UK is cool and often cloudy and rainy. High temperatures are infrequent.”[20]
[18] ARD, p 54.
[19] ARD, pp 302–305.
[20] ARD, p 51.
Pausing here, I do not consider that the contents of this email appropriately discharged the appellant’s obligations to notify a dispute.
The 2021 proceedings commenced on 10 December 2021, during which, the dispute regarding each of the expenses was ventilated before the Member. It was only then, at the hearing, that counsel for the appellant raised the argument of Anshun estoppel.
The appellant submitted at the hearing that the claimed expenses that were incurred before the 2020 claim ought and should have been advanced in that claim. Counsel for the appellant said that by not doing so, unreasonable behaviour on the part of the respondent could be inferred. The appellant accepted however that this submission had no application to the expenses incurred and claimed after the conclusion of the 2020 claim. The matter then proceeded by way of written submissions.
THE MEMBER’S REASONS
The Member did not grant leave to the appellant to raise Anshun estoppel and ultimately determined the claims for medical or related treatment expenses in favour of the respondent. As this appeal is limited to how the Member dealt with the application for leave pursuant to s 289A of the 1998 Act and the argued Anshun estoppel principles, I set out below the parties’ submissions made to the Member on this discrete issue and limit this summary of his reasons to the passage where the Member dealt with these matters.
Before the Member, the appellant submitted in writing on 1 March 2022 (incorrectly dated 1 March 2021) that the expenses subject of the 2021 claim had either been claimed or were similar expenses to those claimed within the 2020 claim. Those expenses were subject to dispute notices, and were either discontinued, heard, or determined, bar two items (being the lawnmower and heating oil) which were sought after the 2020 proceedings. The appellant submitted that Anshun estoppel was thus applicable in the determination of any of the expenses, as the test was “whether a litigant could reasonably have been expected to have brought forward these claims in earlier proceedings”.[21]
[21] Appellant’s written submissions before the Member, dated 1 March 2022, [20].
With reference to Geary v UPS Pty Ltd,[22] the appellant argued that the “matters relied upon in these proceedings … were so relevant to the prior proceedings that it was unreasonable not to bring forward those claims or otherwise pursue them to a full determination”.[23] The scope of the Certificate of Determination – Consent Orders from the 2020 proceedings “involved matters which extended to include expenses pursuant to ss 59 and 60 of the [1987] Act”, and it was unreasonable for the respondent not to have had all of the “controversies” (being the expenses claimed) dealt with then, thus leaving the appellant “vexed again in circumstances which the Personal Injury Commission has not tolerated in the past and would not tolerate now”.[24]
[22] [2021] NSWPICPD 47 (Geary).
[23] Appellant’s written submissions before the Member, dated 1 March 2022, [21].
[24] Appellant’s written submissions before the Member, dated 1 March 2022, [23]–[25].
The respondent submitted before the Member that Anshun estoppel was a previously unnotified matter, not raised in any dispute notice, the Reply, nor at the teleconference prior to hearing. Accordingly, the appellant required leave to raise such a point, pursuant to s 289A of the 1998 Act. The onus was on the appellant to prove it was in the interests of justice to raise the argument, with reference to the matters in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[25] relevant to the exercise of the discretion under s 289A.[26]
[25] [2007] NSWWCCPD 227 (Mateus).
[26] Respondent’s written submissions before the Member, dated 15 March 2022, [60]–[62].
At [63] of his submissions, the respondent provided the following reasons why the appellant should not be granted leave:
“· It has not acted promptly in bringing this matter to the attention of the Commission or the [respondent]. The first occasion on which it was raised was the hearing;
· It has not offered any explanation for the unreasonable and unexplained delay in bringing this matter to the attention of the Commission and the [respondent];
· It has not raised the matter in any dispute Notice issued by it, which it presumably considered carefully and with proper and due consideration to the factual and legal issues at play;
· It has not identified any prejudice to it but there is significant prejudice to the [respondent] who has not been afforded an opportunity to put on any evidence to deal with the matter;
· The general conduct of the [appellant] ought to be taken into account and there has been no hint of any estoppel argument being raised. The basis of the dispute notices has only ever been whether the medical and treatment expenses are covered by the legislation.”
In respect of the defence of Anshun estoppel itself, the respondent submitted that it could not apply in the present circumstances concerning a worker suffering from catastrophic injuries, one who will forever require medical or related treatment, particularly as medical opinion regarding the reasonable necessity of types of treatment can change over time. As an example, the medical opinion in respect of the necessity for a FES bike changed between 2013 and 2022. By 2022, this equipment was routinely used for spinal therapy across the world, and thus, reasonably necessary. This proved to be an example of the dispute between the appellant and the respondent. It argued that the respondent had not failed to make claims in the past, had brought claims forward, and had “discontinued some claims in order to ensure that the evidence is sufficient to enable a proper determination of the matters before the Commission”. Other claims had been paid over time. This was not an abuse of process.[27]
[27] Respondent’s written submissions before the Member, dated 15 March 2022, [65]–[66].
In reply, the appellant accepted that it had not previously raised Anshun estoppel, but submitted that leave should be allowed as the argument was an “important point of law and policy which affects the integrity of these proceedings such that they must be stopped ...”.[28]
[28] Appellant’s written submissions before the Member, dated 22 March 2022, [24].
In regard to the Mateus principles, the appellant pointed out that leave had been granted in that case. Despite Anshun being raised late, the “overriding principle is the interests of justice” and not dealing with the point would “be contrary to the purpose of the Commission’s powers … namely to act according to equity, good conscience and the substantial merits of the case”. The appellant said it was not seeking to adduce new evidence (as was the case in Mateus). Rather, the entirety of the argument based upon existing documents both parties were privy to over the course of time and during proceedings.[29]
[29] Appellant’s written submissions before the Member, dated 22 March 2022, [26]–[28].
The appellant maintained that notwithstanding proceedings being discontinued or resolved by consent, there was “little doubt” that the current proceedings involved “controversies” that could and should have been brought earlier. The appellant submitted that the Commission should turn its mind to the fact that unnecessary costs have been incurred by both parties to agitate these controversies which were alive prior to 2022 and “could easily have been captured” as part of the numerous prior proceedings brought by the respondent, with estoppel arising where “the matter relied upon in the second or subsequent action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”.[30]
[30] Appellant’s written submissions before the Member, dated 22 March 2022, [29].
In reference to the two expenses claimed that did not pre-date the 2020 claim (namely the FES bike and heating oil), the appellant submitted that the “subject matter of those claims well precedes the notification of the dispute”. The appellant referred to Miller No 5 at [187] where I stated: “… in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts”.[31] Having regard to the substance of the claim, the appellant considered it was unreasonable not to have pleaded or notified these matters and pursued them, noting reliance on the same evidence which had been refiled. The method of “disposing of controversies” that should have been raised or were raised but not pursued does not prevent an Anshun argument.[32]
[31] Appellant’s written submissions before the Member, dated 22 March 2022, [32].
[32] Appellant’s written submissions before the Member, dated 22 March 2022, [31]–[34].
The appellant argued that the respondent did not question the correctness of Geary, and that it did not matter that certain concessions were made as a result of an expert changing an opinion. In response to the respondent’s submissions that it had not failed to make claims, the appellant argued that the respondent had in fact failed to make claims, and was duty bound between 2009 to 2012 to commence proceedings in respect of costs claimed or disputed at that time. The respondent’s claim was “pellucidly clear” and it did not matter that claims had been paid by the appellant over a period of time.[33]
[33] Appellant’s written submissions before the Member, dated 22 March 2022, [34]–[36].
The appellant concluded at [37] that:
“As a matter of public policy and also based on the interests of justice that should serve not only the [respondent] but also the [appellant], the [respondent] must now be stopped from advancing these claims that were very much alive at the time of prior proceedings and it is respectfully submitted that it is hard to hard to think of a more compelling case to determine the proceedings as being incapable of being advanced than this one which has involved the continuous agitation of past controversies which now must be brought to an end. That is the purpose of the doctrine of Anshun estoppel. The current proceedings are unreasonable and reasonableness dictates that the [respondent] should be estopped from maintaining them.”
In his reasons, the Member briefly approached the decision on s 289A of the 1998 Act, which I set out in full:
“94. I read with interest Mr Baran’s submissions regarding the [Anshun] estoppel. However they cannot be considered, as I decline to grant leave pursuant to s 289A of the 1998 Act, which provides:
‘(1)A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.’
95. This issue was not raised before the hearing, and accordingly I have to be satisfied that it is in the interests of justice to accede to Mr Baran’s application. Geary was relied on by Mr Baran as the basis of his application. At [123], President Judge Phillips said:
‘123. … As I have previously found in relation to claims under the workers compensation Acts, it is possible for various claims under that legislation to be pursued in different proceedings without engaging with the Anshun principle. However the Anshun principle does exist for deployment in workers compensation claims in appropriate cases. By appropriate cases I mean cases where after a consideration of the facts and the undertaking of the evaluative exercise referred to by McColl JA in Habib, the Anshun principles might then be enlivened.’
96. The application of the estoppel depends on whether the facts and circumstances constitute an appropriate case. The [respondent] has not had an opportunity to even consider, let alone obtain such further facts it deems necessary to enable an evaluative exercise to be undertaken. The [respondent] is prejudiced, and the application is dismissed.
97. (In passing, I note that Mr Baran referred to p 24 of the ARD as an example of a prior order having been made. Unfortunately, it related to an entirely different case, which I assume was inadvertently included. There has in fact been only one application in relation to these claims, or claims similar, that being on 22 April 2020.)”
The Certificate of Determination issued on 10 June 2022 records:
“1. There is an award pursuant to s 60 of the Workers Compensation Act 1987 in favour of the [respondent] in the following amounts:
(a)$2,650 from Walkers moving and storage dated 18 November 2009;
(b)$15,320 from Grace Removals Group dated 14 March 2012;
(c)$12,996 for two business class seats from Emirates Flight Centre dated 18 May 2012;
(d)$2,100 for excess baggage from Emirates Flight Centre;
(e)GBP 58.9 import tax from UK Customs dated 21 June 2012;
(f)$3,360 from Jetpets for the transportation of Mr Goode’s dog, dated 1 May 2012;
(g)$567 for medical supplies posted to the UK dated 8 June 2012;
(h)the [appellant] will pay the cost of 65% of the [respondent’s] fuel oil per annum from 2012 to date and continuing;
(i)GBP 2,190 from Sam Turner & Sons dated 29 June 2020 for the purchase of the Husqvarna Automower, and
(j)GBP 6,525.17 to DJ Smith, painter and decorator.”
PRINCIPLES ON APPEAL
Section 352 (5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The approach to dealing with appeals under this provision has been the subject of a number of decisions at Presidential level. Deputy President Roche in Raulston v Toll Pty Ltd[34] (since 1 March 2021[35] applying to a ‘member’ rather than an ‘arbitrator’) said as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[34] [2011] NSWWCCPD 25, [19].
[35] The date of relevant commencement of the 2020 Act.
FURTHER PRINCIPLES TO BE CONSIDERED IN THIS APPEAL
This appeal was initially advanced on two grounds. At the hearing on 18 July 2023, Mr Baran, counsel for the appellant, confirmed that Ground Two was no longer pressed (being that the Member erred in fact and law in finding the expenses were compensable pursuant to s 60). Consequently, the appeal proceeded on Ground One only, which ground involves consideration of:
· section 289A of the 1998 Act, and
· Anshun estoppel principles.
I set out below a number of principles referable to the remaining Ground.
SOME PRINCIPLES ABOUT SECTION 289A OF THE 1998 ACT
Chapter 7, Pt 4, Div 3 of the 1998 Act sets out the process of how disputes are referred to the Commission. Division 3 also specifies the restrictions as to when a dispute can be referred. Such restrictions commence in s 289, and further restrictions appear in s 289A.
Section 289A of the 1998 Act provides that a dispute can only be referred to the Commission if it concerns matters previously notified as being in dispute. The exception to this rule is found in s 289A(4), where the Commission is vested with a discretion to deal with a previously unnotified dispute if “it is in the interests of justice to do so”.
Both parties have referred to the decision in Mateus as the leading case defining the non-exhaustive principles to be considered and applied in the exercise of the s 289A discretion.
In Mateus, the Arbitrator (at first instance) considered the following matters in exercising the discretion:
(a) the degree of difficulty or complexity to which the unnotified issues give rise;
(b) when the insurer notified that it wished to contest any unnotified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d) any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.
The Arbitrator’s decision in Mateus was appealed. On appeal Deputy President Roche at [48] framed the matters to be considered in the exercise of the s 289A discretion in the following manner:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified … the matters relevant to the exercise of the discretion ... To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”
Whether the exercise of a discretion by a decision maker has miscarried will be considered in accordance with the long-standing High Court authority of House v The King.[36] No issue is taken on this appeal with Mateus being the non-exhaustive list of factors to be considered in the exercise of the s 289A discretion.
Some principles regarding Anshun estoppel in the Commission
[36] [1936] HCA 40; 55 CLR 499 (House v King).
The parties have referred to my decision in Geary with respect to Anshun estoppel. In Geary I made the following remarks about Anshun estoppel in Commission proceedings.
“80. Before turning to each of the four appeal points, it is necessary to set out the principles as they relate to Anshun estoppel and its application in workers compensation matters.
81. In Anshun, the following circumstances were existent. Anshun Pty Ltd (Anshun) had hired a crane from the Port of Melbourne Authority (the Authority). This hiring was governed by an agreement by which Anshun agreed to indemnify the Authority against all actions in relation to injury or loss of life related to the use of the crane. A worker was injured in the course of his employment when a load of girders being handled by the crane fell on him. The workman sued the Authority and Anshun for damages and negligence. Both defendants claimed contribution from one another, but the Authority did not in its defence plead its contractual right to an indemnity. The worker recovered damages and the Court ordered that Anshun should recover contribution from the Authority to the extent of 90% of the damages and the Authority from Anshun in the amount of 10%. The Authority later brought a second action against Anshun pleading its rights under the contractual indemnity. The question that arose for consideration was whether or not the Authority was estopped from maintaining this second action based upon the indemnity.
82. In not permitting the Authority to maintain its claim based upon the contractual indemnity, the plurality found as follows:
‘In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac.(1876) 94 US (24 Law Ed, at p 199).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.’[[37]]
[37] Anshun, 602–603, per Gibbs CJ, Mason, Aickin JJ.
83. In terms of conflicting judgments, the High Court said as follows:
‘By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.’[[38]]
[38] Anshun, 603–604.
84. The Anshun principle has been considered in a number of cases. Notably in Habib McColl JA (Giles and Campbell JJA agreeing) said as follows regarding Anshun estoppel:
‘The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.’[[39]] (emphasis added)
[39] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 23 (Habib), [81].
85. Further in Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages her Honour describes Anshun as ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’[[40]] (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
[40] Habib, [82].
86. In Habib at [84] her Honour said as follows:
‘A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form’.
87. And further at [85] of Habib her Honour provides the following warning:
‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’’.
88. I have previously discussed the application of the Anshun principle in the context of workers compensation matters. In Miller No 5[[41]] the following discussion appeared at paragraphs [185] and following:
[41] Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller No 5).
‘185.Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: ‘Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits’ and s 354(3) of the 1998 Act: ‘The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’ Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel.
186. I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides:
‘Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.’ (emphasis added)
187. The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd,[[42]] the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts.
[42] 2017 NSWWCCPD 53.
...
194. The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd [[43]] in the following terms:
‘The principles which I distil from these authorities are:
(a) the principle in [Anshun] extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.’’
89. Miller No 5 was decided before the commencement of the 2020 Act.[[44]] Section 350 of the 1998 Act which I have referred to above was repealed and its modified version can be found in ss 56 and 57 of the 2020 Act. For the purposes of this argument however there is no material change to this provision which would alter or affect my remarks in Miller No 5 at [187]. The position under the 2020 Act is that decisions under the Workers Compensation Acts (as defined in s 5 of the 2020 Act) are final and binding except as provided for by the 2020 Act or the enabling legislation. There is no provision in the 2020 Act which would modify or derogate from the approach taken to questions of Anshun estoppel in the Personal Injury Commission’s legacy organisations, the Workers Compensation Commission or the Compensation Court before it.”
[43] [1995] NSWCC 10; 11 NSWCCR 247, 261–262.
[44] The Personal Injury Commission was established on 1 March 2021, s 6(3) of the 2020 Act.
Briefly referring to Geary at [89], the same situation referred to in that paragraph in terms of the chronology exists in this matter. The 2020 claim was commenced in the former Workers Compensation Commission and completed by way of what are effectively Consent Orders,[45] before the commencement of the Personal Injury Commission Act 2020 (the 2020 Act) on 1 March 2021. The 2021 claim was filed after the commencement of the 2020 Act. During the hearing on 18 July 2023, I raised my remarks in Geary at [89] with counsel for the parties, both of whom accepted that the remarks at [89] have equal application to this matter.
[45] See Certificate of Determination – Consent Orders dated 22 April 2020 at ARD, pp 28–29.
Since Geary was decided, the Court of Appeal was called upon to decide whether the Anshun estoppel principle had any application at all to statutory compensation schemes. In Miller v Secretary, Department of Communities and Justice,[46] the Court of Appeal held that the principle did have application in appropriate cases (see Ward P at [126]–[127] and Brereton JA at [133]–[135]). Miller No 10, just like this matter, concerned a claim under the workers compensation legislation.
[46] [2022] NSWCA 190 (Miller No 10).
As part of my assessment of the Mateus factors, I must consider the merit of the appellant’s Anshun claim, and the principles I have set out above will be the basis of that consideration.
LEGISLATION
Section 289 of the 1998 Act relevantly provides:
“289 Restrictions as to when dispute can be referred to Commission
…
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.
Note—
Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.
…”
Section 289A of the 1998 Act provides the following further restrictions:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
GROUND OF APPEAL
The appellant advances a single ground of appeal:
“The Member miscarried his discretion in refusing the appellant leave to argue that there was an estoppel being an Anshun estoppel from being argued and in so doing engaged in conduct constituting an error of legal principle, permitted extraneous or irrelevant material to affect him and failed to take into account a material consideration such that the discretion was carried [sic, miscarried] and the Personal Injury Commission at the Presidential level should intervene.”
The appellant has invited me to either redetermine the matter or to remit it to a member to have it redetermined in accordance with law.
CONSIDERATION
Before turning to a consideration of the individual grounds of appeal, I set out several factual matters which are not in dispute, and which are relevant to a consideration of this ground of appeal. They are:
(a) at all relevant times during the 2020 claim and 2021 claim, both the appellant and respondent were legally represented;
(b) at all relevant times the appellant had accepted liability for the respondent’s injuries;
(c) the then Workers Compensation Commission and its successor, the Personal Injury Commission, are the tribunals of competent jurisdiction to hear and determine both applications, and
(d) the parties to the 2020 claim and 2021 claim are the same. Both claims involved a dispute regarding expenses incurred by the respondent as a result of his injuries. Both claims involved various claims all pursued under s 60 of the 1987 Act.
The appellant, at no stage prior to the hearing of this matter on 1 March 2022 before Member Wynyard, had given the respondent notice that Anshun estoppel was a ground relied upon by the appellant to dispute the respondent’s claims. As a result of this fact, the appellant is only permitted to avail itself of this argument if leave is granted pursuant to s 289A of the 1998 Act. I would also make this remark about the appellant’s submissions for the sake of clarity. In the appellant’s Submissions on Appeal at [4] and Reply Submissions at [2] and [8], reference is made to a Certificate of Determination dated 11 August 2014.[47] This document prima facie appeared to be unrelated to the application. I issued a Direction to the parties dated 31 May 2023 to clarify the status of this document. The appellant has, quite properly, eschewed any reliance on this document noting that it was probably filed in error. I will, as a consequence of this concession, have no regard to that document nor any submission based on that document.
[47] ARD, p 24.
The Member dealt with the issue ventilated on appeal briefly at reasons [94] to [97]. At [95] the Member stated that he had to be satisfied that it was in the interests of justice to allow the appellant to rely on the previously unnotified Anshun argument, noting that it had not been raised before the hearing, and quoted paragraph [123] of my decision in Geary before making the following finding:
“The application of the estoppel depends on whether the facts and circumstances constitute an appropriate case. The [respondent] has not had an opportunity to even consider, let alone obtain such further facts it deems necessary to enable an evaluative exercise to be undertaken. The [respondent] is prejudiced, and the application is dismissed.”[48]
[48] Reasons, [96].
While both parties drew the Member’s attention to Mateus, only the respondent submitted, in terms, how the Mateus factors ought be construed and applied in this matter.[49] The appellant made reference to Mateus but failed to deal with the factors in terms, rather submitting that “the overriding principle is the interests of justice”.[50] The appellant’s approach before the Member was to concentrate on the Anshun argument itself rather than addressing in detail the requirements to substantiate the s 289A application.
[49] Respondent’s written submissions before the Member dated 15 March 2022, [63].
[50] Appellant’s written submissions before the Member dated 22 March 2022, [26].
In any event the correct authority (Mateus) was brought to the Member’s attention. The Member has only had regard to two of the Mateus factors, namely when the insurer notified its intention to rely on the unnotified matter and prejudice to the worker. The interest of justice point was referred to, but not engaged with. None of the other non-exhaustive factors were considered. Nowhere did the Member grapple with the sole matter put forward by the appellant, which was to the effect that its failure to rely on the Anshun principle was an “oversight”. I have examined the papers and could not identify where the oversight explanation was given so this may be the reason why it was not dealt with in terms. By definition, there can be no error in failing to deal with a point not taken. Importantly, nowhere did the Member evaluate the merits of the proposed Anshun defence for which leave was sought. Whilst the Member only has to publish “brief reasons”[51] this does not absolve the Member from engaging with the essential question he was called upon to decide, which was whether leave would be granted under s 289A of the 1998 Act. This required engaging with the parties’ arguments and the Mateus factors.
[51] Section 294(2) of the 1998 Act.
The Member has not dealt with the s 289A application in accordance with law in that the Member failed to take into account relevant matters, namely the factors referred to in Mateus, including assessing the merit or otherwise of the proposed Anshun defence.
Error in the House v The King sense in terms of the failure to exercise a discretion in accordance with law has been established.
This ground of appeal has been established.
Redetermination
At the hearing of this matter on 18 July 2023, I indicated to the parties that in the event that I found error on the Member’s part, that it was my intention to redetermine the matter.
The power of a Presidential Member to redetermine a matter is to be found in s 352(6A) of the 1998 Act and has been described in the following terms by the Court of Appeal. In Chubb Security Australia Pty Ltd v Trevarrow,[52] Santow JA said as follows:
“Whether the Presidential member revokes and substitutes a decision or remits the matter to an Arbitrator is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims.”[53]
[52] [2004] NSWCA 344 (Trevarrow).
[53] Trevarrow, [28].
Whilst Trevarrow was decided with respect to the former Workers Compensation Commission, those comments continue to apply to the Personal Injury Commission. The statutory mandate of the 2020 Act requires “the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”[54] and that decisions are “timely”.[55] These objects are supported by the “guiding principle” in s 42(1) of the 2020 Act.
[54] Section 3(c) of the 2020 Act.
[55] Section 3(d) of the 2020 Act.
Having found error on the Member’s part and applying the above principles to the present matter means that I will proceed to redetermine the question of whether the appellant is to have leave to rely upon an Anshun defence. This will require a consideration of s 289A of the 1998 Act. The point is relatively confined; it does not involve any credit issues or the need for oral evidence and is the type of issue that readily lends itself to an exercise of the redetermination power.
At the hearing, I invited the appellant to make submissions on the principles arising from Mateus, as on my reading of what transpired before the Member, the appellant did not, in terms, address those principles, rather the appellant concentrated on the Anshun argument. The appellant submitted as follows. The only explanation in relation to its failure to raise Anshun was by reason of oversight. The appellant further submitted that s 289A of the 1998 Act existed to cater for such a circumstance. The appellant also submitted that the Anshun point itself was not of a degree of complexity as identified in Mateus.[56] The appellant submitted that apart from this point it had otherwise complied with its obligations under the legislation and said that the prejudice accruing to the appellant involved being shut out from contesting an argument otherwise available to it at law.[57] In terms of the timing of the unnotified matter being raised, counsel for the appellant said that this was cured by the Member’s order for written submissions.[58]
[56] Transcript (T) of hearing 18 July 2023, T34.8–24.
[57] T35.
[58] T38–39.
Before the Member, the respondent worker addressed the Mateus principles at [62] and [63] of his submissions of 15 March 2022 (as I have set out above at [36]). In oral submissions before me, counsel for the respondent supplemented these submissions with the following remarks. The respondent submitted that an Anshun application was complex and that the appellant had a significant statutory obligation to raise it with the respondent and it was not done until the hearing.[59] The respondent submits that the delay in asserting Anshun has never been the subject of a reasonable explanation.[60] The respondent pointed to the conduct of the relationship between the parties and noted that at no time had this defence to the respondent’s claims ever been indicated.[61]
[59] T47.
[60] T48.5–6, T54–55.
[61] T51.15–20.
Consideration
Before embarking upon this reconsideration, I would make the following remarks. It is clear that Anshun as a defence applies to statutory compensation schemes.[62] I will approach the consideration of the s 289A application on this basis, which requires an assessment of the relative merits of the appellant’s proposed Anshun defence in accordance with Mateus. In terms of how the Anshun defence ultimately came to be characterised by the appellant, it was only sought to be applied to claims that were existing but not advanced before the institution of the 2020 claim. The appellant quite properly eschewed any reliance on this defence to that category of claims that were “new” in the 2021 claim.[63] I also record that there has only been the single prior set of proceedings before the 2021 claim, being the 2020 claim which I have described above and which resulted in the making of the orders made by consent contained in the COD in relation to various claims for expenses. There is no earlier decision on the merits of matters in dispute that could possibly be in conflict with any decision in these proceedings, so that is not an issue that arises.
[62] Miller No 10.
[63] T13.5–34.
Mateus, as I have described (above), sets out a number of non-exhaustive factors to be considered when dealing with a s 289A leave application and whether it is in the interests of justice to grant leave. The starting point is to undertake a broad review of all of the circumstances surrounding this matter.
The respondent, as is evident, is a paraplegic. Axiomatically, he will have needs that will change from time to time depending upon his condition, the advice he is given by his treating practitioners and possible developments in medical science which may assist in the management of his condition. In short, the needs will not always be the same and may be based upon different facts or expert opinions. As Hutley JA said in Thomas v Ferguson Transformers Pty Ltd,[64] “the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of muscles by lack of use, and even psychological decay by reason of lack of something to do.”[65] Thomas was also a case involving a catastrophically injured worker who suffered from paraplegia who contested a number of claims under the former provisions,[66] now reflected in s 60 of the 1987 Act. The words of His Honour have considerable resonance with the circumstances of this matter.
[64] [1979] 1 NSWLR 216 (Thomas).
[65] Thomas, 219–220.
[66] Section 10 of the Workers’ Compensation Act 1926.
The respondent and the appellant will have a long relationship into the future dealing with these issues as they come and go. Whilst this should not matter, the fact is that for very good reasons, the respondent has returned to live in his native United Kingdom and so the appellant has to deal with his needs in that country.
I now move to a consideration and application of the various principles from Mateus to the determination in this matter as to whether it is in the interests of justice to grant the appellant leave to rely on an Anshun defence.
The application to rely upon the Anshun defence was made very late, namely at the commencement of the hearing before the Member. Before then, there had been a telephone conference in the Commission before the Member, pleadings had been filed and before the proceedings commenced there had been numerous exchanges between the parties, as I have set out in the Evidence part of this decision. In terms of the pleadings filed by the appellant, at the hearing before me, counsel for the appellant submitted as follows: “The point that we raised was one of Anshun estoppel. It is one that ordinarily, a body like Racing NSW or the insurer would not have in mind, so the section 78 notices did not raise it. It was in our Reply, but there was an assertion that there would be additional submissions, in addition to what had been raised. We accept, without reservation, Anshun wasn’t mentioned.”[67]
[67] T5.21–28.
The relevant section of the Reply, after confirming that the relevant dispute notices were attached and that there was no failure to determine a claim, says as follows:
“The [appellant] relies on its notices issued pursuant to sections 74 and 78 of the [1998 Act] dated 29 May 2013, 19 December 2013 and 29 April 2020.
For abundant clarity, the [appellant] confirms the following:
Medical and Treatment expenses
1. The [appellant] disputes that the medical and related treatment expenses claimed by the [respondent] are not reasonably necessary and as a result of a work related injury (which is disputed and denied) as required by sections 59 and 60 of the 1987 Act.
General
2. The [appellant] reserves its right to make submissions on any aspects of the claim in due course if further evidence is adduced. Failure by the Commission to allow such further submissions would amount to a denial of natural justice from which the [appellant] may suffer prejudice.”[68]
[68] Reply, p 2.
It is uncontroversial to note that the Commission is not a tribunal requiring strict pleading.[69] This Reply, as is commonly the case, indicates opposition to the claim in broad but readily understandable terms. Whilst the word “not” in prayer 1 is probably included by error, when one reads the whole sentence, the meaning is still clear. The Reply says that the expenses claimed are not payable under ss 59 and 60 of the 1987 Act. All prayer 2 does is reserve a right to respond to further evidence, should any be filed during the course of the proceedings. Reading this pleading would in no way alert a reader that the reservation about additional submissions would extend to a possible Anshun argument.
[69] See s 43 of the 2020 Act.
Indeed, the evidence reveals the course of dealings between the parties, usually by email either directly between the respondent and the appellant, or on behalf of the respondent by his solicitor and the appellant. At none of these points prior to the hearing did the appellant give any indication that it proposed relying on this defence. I would remark that the appellant is a sophisticated litigant and its only explanation for failing to notify the respondent was that it was an “oversight”. As was submitted by counsel for the respondent, the appellant has not filed any evidence as to why the proposed Anshun defence was not notified sooner. Rather, all that is relied upon is a statement before me at hearing that the explanation is that it was an oversight. Counsel for the appellant argued that it was not usual practice for technical legal issues, like Anshun, to be notified in s 78 notices.[70] I should say that I do not accept this submission. The scheme of the workers compensation legislation is for matters in dispute to be notified so that applications can be prepared accordingly, focusing on the real issues in dispute. This then enables the Commission to meet its statutory objects and guiding principle.[71] This legislative mandate is not enabled if issues are not identified by way of notice pursuant to s 78 of the 1998 Act. Section 79 sets out the way in which this notice must be given, and specifically requires “a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision” at s 79(2). Section 79(4) allows regulations to set out the form in which such a notice can be given. The appellant is a sophisticated litigator who was well capable of identifying this argument. But I accept the appellant’s submission that s 289A is an exception to this general approach, hence the requirement for leave to be sought.
[70] T5.14–25.
[71] Sections 3 and 42 of the 2020 Act.
I do not consider that the appellant acted promptly in bringing the matter to the attention of the Commission or the respondent, nor do I consider that the proffered explanation is sufficient. Apart from pleading “oversight’ through its counsel, which statement I accept as far as it goes, there is otherwise no explanation about how this situation came about. This explanation does not explain the whole period of the delay in bringing this matter forward and this is a factor to be weighed in the balance. The timing of the raising of this issue gave the respondent no opportunity to consider what evidence may be required to answer the defence. It is no answer to this for the appellant to blithely assert that it was only relying upon material that was before the Commission. It is not for the appellant to dictate how the respondent is to contend with a previously unnotified matter. Further I would remark that in relation to the 2021 claim, the appellant had failed to comply with its statutory duty to issue a s 78 notice and the requirements set out in s 79 with respect to some matters claimed, notably the claim for heating oil (see [28] above). This claim was advanced on the basis of the respondent’s condition known as poikilothermia, which means that the respondent has trouble regulating his core body temperature. Nowhere did the appellant respond appropriately to the claim based upon this condition, nor was any issue taken with the need as expressed.
Whilst I accept that the parties had been in communication by way of email and had been trying to resolve the dispute, this step, in terms of disputing the heating oil claim, was not taken by the appellant in the period between the end of the 2020 claim and the commencement of the 2021 claim. I also accept that this criticism can only apply to new matters notified by the appellant, noting that the statutory notices which preceded the 2020 claim did appropriately discharge this obligation in relation to some of the claims which were part of the 2021 proceedings. So, in terms of the appellant’s obligations to notify disputed matters under the statute, I find that there has been substantial but not complete compliance.
I would also remark, notwithstanding the appellant’s assertion to the contrary, an Anshun defence is complex. It constitutes, if established, a complete defence to the respondent’s claims. As McColl JA said in Habib at [85] set out above, shutting out a claim without determination of its intrinsic merits is a serious step.
It was unreasonable for the appellant to expect the respondent to contend with such a claim without notice, as happened before the Member. I accept however, given that the matter was dealt with by way of written submissions and then on appeal and in this reconsideration, that this observation has less resonance than it had when the matter was first raised.
In terms of the Anshun argument though, I do not consider that it has been articulated in a manner that is compelling. A fundamental precept in the establishment of an Anshun defence is that the later claim was so relevant to the subject matter of the earlier dispute, that it was unreasonable not to have advanced it in the earlier proceedings.[72] In Miller No 10, Brereton JA remarks that Anshun “is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding.”[73] (emphasis in original)
[72] Anshun, 602.
[73] Miller No 10, [134], citing Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [27] (French CJ, Kiefel, Keane and Nettle JJ); Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 at [22] (French CJ, Bell, Gageler and Keane JJ).
Other than the fact that both sets of proceedings are about claims for expenses under s 60 of the 1987 Act, I do not accept that the claims were such that they all had to brought at once before the Commission. The dispute between the parties is about various expenses incurred by the respondent in the ongoing management of his paraplegia. Each expense may give rise to a different consideration, both legal and factual, from another expense. From an Anshun point of view, the mere fact that a claim could have been brought in earlier proceedings does not automatically mean that it should have been brought. What is required is the evaluative exercise spoken about by McColl JA in Habib, particularly at [84]. In Champerslife Pty Ltd v Manojlovski[74] the Court of Appeal said in deciding whether the matter in question was so relevant that it can be said to have been unreasonable not to rely upon it in the first proceedings involves a value judgment to be made referrable to the proper conduct of modern litigation.
[74] [2010] NSWCA 33; 75 NSWLR 245, [3].
Performing this evaluative exercise reveals that whilst both proceedings have a superficial resemblance to each other in terms of both being claims for expenses under s 60 of the 1987 Act, an examination of the substance of each claim advanced shows that they are different to each other. For example, the claim for heating oil as opposed to the claim for a robotic lawnmower involve quite different considerations. Each claim may require a different legal consideration of the terms of ss 59 and 60 of the 1987 Act and the decided cases on the particular type of claim.[75]
[75] See for example the discussion in New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 and Diab v NRMA Ltd [2014] NSWWCCPD 72.
“Unreasonableness”, as I have set out above, is a key feature of Anshun estoppel. Namely, was it unreasonable not to have advanced the claims in the earlier proceedings? Counsel for the respondent, with some force, submits that it is for the appellant to establish the Anshun point and further that there is no evidence of unreasonable conduct. In response, the appellant asserts that I can infer unreasonable conduct from the materials. It is said that there is a high degree of correlation between the claims and evidence relied upon by the respondent in both proceedings. This submission can only relate to the expenses incurred prior to the filing of the 2020 claim and which were not advanced in those proceedings. This complaint cannot relate to the two matters discontinued in the 2020 proceedings, which were by definition brought forward by the respondent at that time.[76] The question therefore is in relation to that group of expenses incurred before, and in some cases well before, the 2020 claim was commenced, whether it was unreasonable not to have brought them forward in the 2020 claim. I bear in mind that Anshun is not an inflexible principle. As the High Court in Anshun said, “there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings”.[77] I also referred to this aspect of Anshun in the context of workers compensation claims in Miller No 5 at [194].
[76] I will deal with these two discontinued claims below beneath the sub heading “The resolution of the 2020 claim”.
[77] Anshun, 603.
In considering whether unreasonableness can be inferred, as the appellant urges me to do, I take into account the following matters. In terms of the expenses which had been incurred and which existed at the time the 2020 claim was filed and were not advanced by the respondent, this is a potential factor indicating unreasonableness. The appellant likened these claims to liquidated debts.[78] During the hearing, counsel for the appellant put the case thus:
“JUDGE PHILLIPS: Now, are you saying it’s a question of timing so that when these things are, when these claims arose that they then should have become part of that, say, the 2020 proceedings, because they pre-existed the commencement of it ... that’s your point?
MR BARAN: That’s the heart of it.”[79]
[78] T18.20–21, T25.16–21.
[79] T20.1–7
Tribunals such as the former Workers Compensation Commission and the Commission have statutory mandates to act in a quick, just and flexible manner. There are also the rights of other litigants whose cases also must be heard. The interests to be considered are not just the private interests of the litigants. In this regard I would note that the Anshun argument does not apply to every claim made by the respondent, only those that pre-existed the commencement of the 2020 claim. Consequently, there was always going to be a dispute in 2021 in respect of at least the confined set of new claims. The public interest to be considered is thus not as high as it would have been had the 2021 proceedings simply been a repetition of the 2020 proceedings. This is to be contrasted to Miller No 10 (referred to above) which had been contested to a decision and then on appeal with the applicant failing. Later the same applicant filed a claim based on the same facts against the same defendant, the difference being that it was pleaded differently. The public interest with respect to the second set of proceedings advanced in Miller was thus significant.
As I have set out above, the respondent is a paraplegic and both parties will have a long relationship into the future when it comes to dealing with the respondent’s needs from a s 60 point of view. I do not consider that it is realistic in these circumstances to expect the respondent to bring each and every of his s 60 claims at once. The evidence reveals a course of dealing between the parties where claims are advanced, accepted or denied and then in the case of both claims, contested. I expect, given all the circumstances, that this will be the course of dealing into the future. The evidence also reveals that in the COD resolving the 2020 claim, an expense that was eight years old was paid by the appellant.[80] Clearly the appellant had no issue in consenting to pay an expense after the effluxion of that lengthy period.
[80] See Order 7 in the COD – Consent Orders dated 22 April 2020.
I decline to infer that the respondent has behaved unreasonably. Whilst the issue of the existing claims that were not advanced in the 2020 claim is a factor perhaps pointing towards unreasonableness on the respondent’s part, there is nothing in his conduct or the conduct of the proceedings that would allow me to draw such an inference. This submission is effectively asking me to elevate the Anshun principle from what could have been brought in the earlier proceedings to a principle which requires that it should have been brought. As a consequence of this finding, the Anshun claim in this case has little merit. Whilst the appellant has identified that the prejudice it would suffer if leave were not granted is the inability to advance an Anshun defence, it light of the merit of the Anshun claim, there is little or no prejudice accruing.
I next refer to the Mateus factor that the decision to dispute a claim should not be made lightly or without proper consideration of the factual and legal issues involved. In this matter, the insurer completely neglected any consideration of the Anshun defence. At the very least, it should have been referred to in the Reply. Indeed, the matter was only contemplated once counsel was briefed to defend the application.
In terms of prejudice to the respondent, the Member found he was prejudiced and that finding is not the subject of any challenge on this appeal. Even absent that finding, it would not be difficult to find prejudice. Shutting out a claim without hearing it on the merits is, as I have set above in the quote from Habib, is a serious matter.
The resolution of the 2020 claim
At the directions hearing in this matter, I asked both counsel to make submissions about what approach should be taken to the COD.
The appellant states that the 2020 claim should have disposed of all controversies between the parties. By controversies I will take it that the appellant is referring to all the existing claims that had been that the respondent was aware of at the time the 2020 claim was advanced. The appellant developed this submission to state that in relation to the matters discontinued in the COD, those claims had been effectively “abandoned” by the respondent and that was how the appellant was entitled to consider them.[81] In respect to the matters discontinued, the appellant further submitted as follows: “The [appellant] had every reasonable expectation to believe that those particular expenses were no longer being claimed.”[82] The appellant also made the point that the COD was entered on legal advice.[83]
[81] T26.1–2.
[82] T27.30–34.
[83] T32.9–10.
The appellant also relies on the High Court decision in UBS AG v Tyne.[84] This was a case about abuse of process. Pausing here, I note that in Miller No 10, Brereton JA (as he then was) described that proceedings caught by Anshun were “ex hypothesi vexatious”.[85] In UBS the High Court examined a situation where a single person, Tyne, who controlled a number of entities, advanced claims on behalf of some, but not all of the entities, that were involved in the facts which gave rise to the litigation. The first set of proceedings initially involved all relevant parties until a discontinuance by one entity. The matter then proceeded to judgment after a contested hearing on the merits. Subsequently, another Tyne entity commenced proceedings, having discontinued its claim in the earlier proceedings “arising out of the same facts and making essentially the same claims as are made on behalf the Trust in these proceedings.”[86] This, the plurality held, was unreasonable conduct[87] and the UBS party was entitled to order its affairs based on the discontinuance.[88]
[84] [2018] HCA 45; 360 ALR 184 (UBS).
[85] Miller No 10, [134].
[86] UBS, [3].
[87] See Gageler J at UBS, [81].
[88] UBS, [58].
In reply, counsel for the respondent denied that the discontinuance could be considered to be an abandonment of those claims. The respondent said that this was not the practice. If a claim was to be abandoned, the practice was that an award would be entered in favour of the employer.[89]
[89] T43.
I am not satisfied that the discontinuances had the quality or effect of an abandonment of those claims. The facts do not bear out the appellant’s assertion that it was entitled to treat those claims as no longer being pursued. The appellant never acted on this basis once it received the 2021 claim or in its dealings with the respondent before that claim was filed. The Reply filed by the appellant fails to make this assertion. Rather the Reply frames the defence of the claims on the basis that they were not allowable claims under ss 59 and 60 of the 1987 Act.[90] The COD is not a bar to the respondent pursuing the two discontinued matters. Secondly, I consider that this matter can be distinguished from the circumstances in UBS. In UBS there was a positive finding of unreasonable conduct on the part of Tyne. No such situation exists in this matter, the highest the appellant says is that unreasonable conduct can be inferred. For the reasons outlined above, I have declined to draw this inference. Thirdly, as I have described above, while the various s 60 claims have a superficial similarity, the situation is not that simple. Once each claim is examined, it may be argued or justified on a differing factual and/or legal basis. This is in contrast to UBS, where the second set of proceedings was essentially the same as the prior proceedings except for the identity of the moving party. Fourthly, this matter did not proceed to a contested judgment in the earlier proceedings, as occurred in UBS.
[90] Reply, p 2.
DECISION
Notwithstanding the error made by the Member in dealing with the s 289A leave application, I have decided on redetermination not to grant leave to the appellant to rely on an Anshun defence. As a result of evaluating the circumstances of this matter, weighing the factors identified in Mateus, including the merit of the proposed Anshun defence and the public interest in the efficient disposal of claims, I find that it is not in the interests of justice to grant the appellant leave under s 289A of the 1998 Act. Whilst there could be circumstances where an Anshun estoppel could be established in relation to multiple claims for s 60 expenses, the appellant has not been able to show merit in the proposed Anshun defence in this case. For the reasons outlined above, I find that the appellant has not been able to discharge the burden of having the discretion exercised in its favour.
I decline to grant the appellant leave under s 289A of the 1998 Act to rely upon an Anshun defence.
In these circumstances there is therefore no need to revisit the terms of the Certificate of Determination dated 10 June 2022.
The Certificate of Determination dated 10 June 2022 is confirmed.
Judge Phillips
PRESIDENT
28 July 2023
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